Court File and Parties
Date: January 5, 2017
Ontario Court of Justice (East Region)
Her Majesty the Queen v. Peter Brammal
Before: Justice David M. Paciocco – Ottawa ON
Reasons for Decision on Khan Application
Released: January 5, 2017
Counsel:
- Ms. Roy for the Crown
- Mr. Beach for Mr. Brammal
I. Overview
[1] This is a Crown application to have admitted into evidence three out-of-court statements attributed to Michael O'Drane, the man Peter Brammal is charged before me with having assaulted, on March 20, 2015. All three statements are being offered as hearsay evidence since the Crown is asking me to rely on these out-of-court statements as Mr. O'Drane's account of what happened. The Crown is resorting to these hearsay statements because, sadly, Mr. O'Drane died prior the trial. There is no allegation that the cause of death was related to the alleged assault. Since he is unavailable Mr. O'Drane naturally cannot be cross-examined on facts that may be claimed in those statements.
[2] The three statements consist of (1) a comment witness Robert Hosie claims to have overheard when Mr. O'Drane was speaking to paramedics after the assault; (2) oral statements attributed to Mr. O'Drane by Cst. Irwin, who interviewed him at the hospital emergency room; and (3) a videotaped interview conducted by Det. Nolan on March 24, 2015, four days after the alleged assault.
[3] Since these statements are being offered as Mr. O'Drane's version of events, they are presumptively inadmissible. The Crown is not relying upon any of the fixed, traditional hearsay exceptions to overcome the presumption. It contends that the statements satisfy the principled exception to the hearsay rule that originated in R. v. Khan, [1990] 2 S.C.R. 531.
[4] The Crown has certainly satisfied the necessity component of the test, as Mr. O'Drane has died. The controversy is whether the statements satisfy the principled exception's reliability component.
II. The Reliability Principles
[5] The onus is on the Crown to prove, on the balance of probabilities, that the statements it seeks to have admitted carry sufficient threshold reliability to warrant being considered as evidence on the ultimate issue of Mr. Brammal's guilt or innocence. There are two "functional" ways in which the Crown can discharge this burden. It can show that "[1] there is a sufficient basis for testing the evidence or [2] the contents of the statement are sufficiently trustworthy": R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 at para 105.
[6] The first line of inquiry examines whether the circumstances in which a statement is made provide the trier-of-fact with a reasonable basis for testing its reliability. This basis for admission does not inquire "into the likely truth of the statement," per se, but asks whether "the trier of fact has a sufficient basis to assess the statements truth or accuracy": R. v. Khelawon, supra at para 92.
[7] Essentially, trial judges considering this branch of the rule examine whether the hearsay statement is made in circumstances that are sufficiently similar to in-court testimony to enable the factual claims to be evaluated in a fashion similar to the evaluation of in-court testimony. Factors naturally include whether the statement was made solemnly under oath or after the equivalent of an oath; whether the declarant was under a legal obligation to speak truthfully, and was aware of that legal obligation; whether the statement was transcribed to ensure the accuracy of the record; whether it was videotaped to enable the declarant's demeanour to be assessed, and whether the declarant has been or can be cross-examined meaningfully about the facts the statement claims: R. v. Khelawon, supra at para 63, paras 73-81; 88-92; R. v. Dupe, 2016 ONCA 653 at para 45. As can be seen, these factors have to do primarily with the procedures used in securing the statement, rather than with context specific indications that the contents of the statement are accurate. I therefore find it helpful to refer to these kinds of factors as "process based indicia of reliability."
[8] "The second line of inquiry [whether the contents of the statement are sufficiently trustworthy] looks to determine whether the circumstances in which the hearsay statement was made provide sufficient comfort of its truth to justify its consideration by the trier of fact despite the absence of contemporaneous cross-examination of the declarant": R. v. Dupe, supra at para 46. Since the inquiry is into factors that give comfort relating to the truth of the statement, the "circumstances in which the hearsay statement was made" refer to circumstantial indicators that the contents of the statement are accurate.
[9] Essentially, the search is for circumstantial indications that the statement is true or accurate that are compelling enough to conclude that the statement "commands sufficient trust in its truth and accuracy to warrant admission regardless" of the inability to cross-examine the declarant: R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517 at para 99. When there are sufficient "indicia of reliability" to provide sufficient comfort as to the truth or accuracy of the statement, it may be admitted: R. v. Khelawon, supra at para 67. Since the inquiry is into the quality of the content of the statement, I refer to these as "content based indicia of reliability."
[10] In making determinations about content-based indicia of reliability, trial judges "may consider not only the circumstances surrounding the making of the statement but other evidence properly before the trier of fact supporting or undermining the accuracy of the out-of-court statement:" R. v. Dupe, supra at para 46.
[11] In considering "other evidence properly before the trier of fact supporting or undermining the accuracy of the out-of-court statements," however, trial judges have been admonished to remain focused on the inherent reliability of the evidence itself: R. v. Blackman, supra at para 57. It would not be appropriate, for example, to consider the evidence that supports the Crown's case, and to then find the statement of the declarant to be reliable because it is consistent with the Crown case, a point I will return to.
[12] Although the basis for admission does generally differ under the two reliability branches I have described – "process based indicia of reliability" and "content based indicia or reliability" – they are not mutually exclusive. They can work in tandem: R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298 at para 35. As always, however, trial judges should not rest content to list relevant factors. They should consider how each indicia of reliability supports admission, and ask whether, in light of this, threshold reliability has been established.
[13] Finally, even where the necessity and threshold reliability standard is met, trial judges have discretion to exclude the hearsay evidence. They have a gate-keeping function to perform, given that "the accused's inability to test the evidence may impact on trial fairness, thereby giving the rule a constitutional dimension": R. v. Khelawon, supra at para 3. If the prejudicial effect of the evidence is out of proportion to its probative value, a trial judge can exercise discretion to exclude hearsay statements that meet the principled exception.
III. The First Statement
[14] The first statement the Crown seeks to have admitted is two words long. According to housing support worker, Robert Hosie, who witnessed paramedics questioning Mr. O'Drane about what happened shortly after the assault, Mr. O'Drane said he did not know what happened, but after being asked a couple of times he said the name, "Peter Brammal." In effect, the Crown is asking that I treat Mr. O'Drane's comment to the paramedics as indicating that it was Peter Brammal who assaulted him.
[15] Mr. Beach raised concerns about whether Mr. Hosie is even right about what Mr. O'Drane said. First, Mr. Hosie was not asked to provide a police statement at the time. More than a year had passed after the alleged assault, and Mr. Hosie was claiming to recall Mr. O'Drane's response, verbatim.
[16] Second, circumstances cast doubt on whether Mr. O'Drane actually said "Peter Brammal." When interviewed a short time later by Cst. Irwin, Mr. O'Drane said only "Peter," and during his videotaped interview on March 24, 2015, he said his assailant was "Peter Burrows." Mr. Hosie knows Peter Brammal, and believes he saw Mr. Brammal's image in a videotape taken at the time of the alleged assault by a lobby camera, near the area of the alleged assault. This raises the possibility that Mr. Hosie may have converted his belief that Mr. O'Drane was speaking about Peter Brammal into a recollection that Mr. O'Drane actually said "Peter Brammal."
[17] These are worthy concerns, but they are not relevant to the reliability inquiry under the principled exception. The admissibility inquiry is not concerned with the reliability of whether the statement was made; its focus is on the reliability of the statement, if made: R. v. Blackman, supra at paras 47-52. This is sensible when it is remembered that the claim by Mr. Hosie that the statement was made is not hearsay. Mr. Hosie testified before me to having directly witnessed Mr. O'Drane make the statement. The reliability of that claim is an ultimate matter for me to determine, as the trial judge. It is not a threshold matter relevant to whether a statement attributed to Mr. O'Drane is sufficiently reliable to admit: R. v. Blackman, supra at paras 47-52.
[18] Still, the Crown has not persuaded me that the statement Mr. O'Drane made to the paramedics in Mr. Hosie's hearing has sufficient indicia of reliability to admit, and I will not be receiving it as hearsay evidence.
[19] It lacks entirely any "process based indicia of reliability," and the "content based indicia of reliability" that do exist tell against admissibility. To be sure, the name uttered by Mr. O'Drane was provided reasonably contemporaneously to the event, but it was not spontaneous. It was uttered in response to questions. Of more concern, according to the un-contradicted evidence of Mr. Hosie, the statement was uttered by Mr. O'Drane while he was lapsing in and out of consciousness, and after he told paramedics that he did not know what had happened.
[20] To counter this the Crown is relying heavily on what it claims is the corroboration by the surveillance video, admitted before me as exhibit 2. This video does not show the alleged assault. Mr. O'Drane sustained his injuries "off stage," as Mr. Beach engagingly put it. The video does, however, show a person Mr. Hosie identified as Mr. Brammal in the vicinity where Mr. O'Drane was injured. Around the time he was injured the video shows the man Mr. Hosie identified as Mr. Brammal moving quickly in the direction Mr. O'Drane went shortly before.
[21] As impressive as this video may prove to be for the Crown, there is a significant problem with using it as confirming the Crown's theory that Mr. O'Drane was identifying his assailant when he allegedly said, "Peter Brammal." In effect, the Crown is asking me to accept that since other evidence in the case supports the inference that Peter Brammal was the assailant, I can infer that Mr. O'Drane was implicitly and reliably identifying Mr. Brammal as the assailant when he spoke his name. If I was to accept this invitation, I would be contravening the admonition in R. v. Blackman, supra, to remain focused on the reliability of the statement. I would have to decide whether I accept the ultimate inferences the Crown wants me to draw from that video evidence, which is a question for the end of the case. This is not how threshold reliability is to be evaluated.
[22] For all of these reasons, the statement attributed to Mr. O'Drane as having been made to the paramedics is not admissible.
IV. The Second Statement
[23] The second statement the Crown seeks to have admitted was made orally by Mr. O'Drane to Cst. Irwin at the hospital, at some unidentified time after Mr. O'Drane was transported by ambulance. Mr. O'Drane was in an emergent care bed at the time, being treated by doctors. According to Cst. Irwin, Mr. O'Drane said he was in the main lobby area talking to and teasing a cat near the lobby window when his neighbor, Peter, approached him, and just pushed him to the ground and kicked him, for no reason. Mr. O'Drane said he was pushed and kicked and sent flying out the door and then his neighbor left. He said that Peter lives in the basement floor by the north stairwell, and he described Peter as a white male, 40 years old with black hair and a beard, chubby, approximately 5 feet 10 inches, wearing a blue shirt at the time.
[24] Once again, there are features of Cst. Irwin's evidence that can be relied upon to challenge its accuracy. He did not record what he was told. He summarized the conversation he had. Moreover, he initially testified that Mr. O'Drane told him the assailant was Peter Brammal, but during cross-examination Cst. Irwin admitted that he inferred the surname from other information he had, and then mistakenly attributed its source to Mr. O'Drane. As explained, these are ultimate reliability concerns and do not affect the admissibility question I am now considering.
[25] As with the first statement, there are no "process based indicia of reliability" that can support the admission of this second statement. The Crown is relying upon "content based indicia of reliability." Once again, those "content based indicia of reliability" are inadequate to support admission.
[26] I agree with Mr. Beach that this is not a case where the Crown can rely on the absence of a motive on Mr. O'Drane's part to mislead anyone about Mr. Brammal's involvement. This is a case where there is an absence of evidence of motive to mislead, which is a different thing, and, at best, a neutral factor: R. v. Czibulka, [2004] O.J. No. 3723.
[27] As with the first statement, this second statement attributed by Mr. O'Drane was made reasonably contemporaneous with the event, but it was not spontaneous. Moreover, this second statement is being attributed to Mr. O'Drane who had said a short time earlier that he could not recall what had happened. There are also indicia of continued confusion by Mr. O'Drane when he was being interviewed. Although Cst. Irwin felt that the confusion related only to why the event occurred, given the earlier evidence of Mr. O'Drane's confusion at the scene, this is cause for concern.
[28] In support of the statement, the Crown relies upon the fact that this second statement was made to a police officer. This is, at best, a modest consideration. Some people tell the police the truth. Others lie, or are mistaken about what they say.
[29] In R. v. Dupe, supra at para 63 Justice Doherty said of a statement made to a police officer during investigation that "[t]here is little, if anything, to commend the inherent reliability of [the witness's] statement." He called the fact that the statement was made to a police officer during investigation an "arguable" indicator for lending some reliability to the assertion. I take the Crown's argument about who the statement was made to, but consistent with Justice Doherty's example, I do not consider this to be a compelling factor.
[30] Beyond this, the Crown is once again relying upon corroboration from "other evidence properly before the court." Specifically the Crown relies on the proximate presence of Mr. Brammal when Mr. O'Drane was injured off camera; Mr. Brammal's sudden and aggressive movements towards the doors Mr. O'Drane was found outside of, injured, only minutes later, and Mr O'Drane's ability to describe Mr. Brammal, including where he lived.
[31] It is important for judges to avoid applying narrow, technical conceptions of corroboration when identifying indicia of reliability. There is no rule requiring that external evidence must confirm the material components of the alleged statement to be of use. Anything that logically enhances confidence in the ability or readiness of the declarant to offer a truthful account is worth considering.
[32] Having said this, the logical utility of the confirming evidence has to be consulted. If Mr. Hosie is right, the video confirms that Mr. Brammal was present, but unless I am prepared to draw the ultimate inferences I have referred to above the video, it cannot be treated as confirming that Mr. Brammal was the attacker.
[33] As for Mr. O'Drane's ability to describe Mr. Brammal, this is not an impressive indicia of reliability. Mr. Brammal and Mr. O'Drane lived in the same building. As I suggested during argument, it would have been more impressive had Mr. O'Drane been able to describe Mr. Brammal's attire at the time of the attack, but in his statement to Cst. Irwin, Mr. O'Drane was wrong about that. He said Mr. Brammal was wearing a blue shirt, when the video shows him wearing a red shirt.
[34] It is important to remember that hearsay statements are presumptively inadmissible. Even bearing in mind that the search is for "threshold reliability," this oral statement to a peace officer does not overcome that presumption.
V. The Third Statement
[35] The third statement the Crown seeks to have admitted is the video statement that was provided by Mr. O'Drane on March 24, 2015, four days after the alleged assault. This statement offers both "process based indicia of reliability" and "content-based indicia of reliability."
[36] Frankly, the "process based indicia of reliability" are unimpressive. To be sure, the interview as videotaped, capturing a complete record of what was said, and enabling Mr. O'Drane's demeanour to be observed, but there is little else. Mr. O'Drane was never asked to take an oath or affirmation. Nor was he told that he was under a legal obligation to tell the truth, and could be prosecuted if he did not. All he was advised was that Det. Nolan wanted him to be "full, fair and frank" and that he wanted the "truth."
[37] As is not uncommon with hearsay evidence, Mr. O'Drane has never been cross-examined on his version of events. Certainly, there is nothing during the videotaped interview that, in any way, tests the reliability of Mr. O'Drane's version. Indeed, before Mr. O'Drane was even asked any questions, he was told he was assaulted and advised "And there's nothing to hide. You are the victim here." He was later led on a crucial point. After Mr. O'Drane described being grabbed and thrown out the door, Det. Nolan suggested "is it fair to say that he tackled you through the door."
[38] I appreciate that by the beginning of the Nolan interview, Mr. O'Drane was a complainant, and Det. Nolan believed that he had been assaulted, as Mr. O'Drane claimed. Still, advising the witness before a video interview begins that they were assaulted, and that they are the victim, hampers the ability of a court to treat the manner in which the story is secured as an indicia of reliability.
[39] What, then, of the "content-based indicia of reliability"? They include the features found in the interview by Cst. Irwin, but there are other, additional factors.
[40] For instance, the Crown relied on Mr. O'Drane's description during this interview of the injuries he sustained in the alleged assault, injuries that are confirmed by photographs taken of Mr. O'Drane after the interview. These injuries are, indeed, consistent with his having been kicked about the face after being pushed onto a concrete patio.
[41] In addition, Mr. O'Drane said in the interview that "Peter Burrows" – who can reasonably be inferred from other evidence to have been Mr. Brammal – came through another door into the lobby and stood behind Mr. O'Drane after Mr. O'Drane said "hello" to Mr. Brammal. The video shows Mr. O'Drane going off camera in an area Mr. Brammal approaches shortly after, and it does appear that Mr. Brammal is addressing someone. This aspect of Mr. O'Drane's story does, therefore, find some support from the video.
[42] For his part, Mr. Beach argued vehemently that the video actually contradicts the heart of Mr. O'Drane's account, namely, that he was standing in the lobby when attacked, and forced out of the doors. He claims that the video shows that this did not happen. I cannot agree. The most that can be said is that the video neither confirms this, nor contradicts it, as the doors are not visible.
[43] What can be said, however, is that Mr. O'Drane's account of how he was forced out the doors varies in this statement, from the version he purportedly provided earlier to Cst. Irwin. In this video statement Mr. O'Drane is clear that he was thrown through the door and then kicked, but if Cst. Irwin has it right, Mr. O'Drane told him that he was kicked through the doors.
[44] Once again, it remains true that this statement offers a version of events from someone who, on the evidence before me, initially had no memory of the incident immediately after it occurred. Moreover, in this interview Mr. O'Drane disclosed that he had previously suffered a brain injury that affects his memory, and, not surprisingly, he found this event to be deeply traumatizing.
[45] In all of the circumstances, and despite the Crown's efforts, I am not persuaded that this videotaped statement bears sufficient indicia of reliability to overcome the presumption of inadmissibility. This third statement cannot therefore be admitted.
VI. Conclusion
[46] At bottom, the heart of the case in favour of the admission of the three hearsay statements depends largely upon confirmation by the video. While there are some incidental features of confirmation that were properly relied upon, especially for the third statement, in substance, the Crown's position is that if its interpretation of the video is correct, it shows Mr. O'Drane being attacked by Mr. Brammal, and this, in turn, shows that Mr. O'Drane's claims to having been attacked by Mr. Brammal are reliable. As indicated, the inferences to be drawn from the video are "ultimate issue" questions and cannot fairly be relied upon as indicia of reliability to support the admission of Mr. O'Drane's out-of-court statements.
[47] In his submissions, Mr. Beach made this same point by urging that the video speaks for itself. The ultimate question I will have to decide is whether it does so, beyond a reasonable doubt, in the context of the other admissible evidence.
Released this 5th day of January, 2017
The Hon. David M. Paciocco